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Don’t Confirm Loretta Lynch

An unanswerable question hangs over the nomination of Loretta Lynch for attorney general: Is Republican opposition to her more racist or sexist?

As an African-American woman, Lynch represents a gloriously double-barreled opportunity to accuse Republicans of sub-rosa hatreds.

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The political benefit of what feminists call intersectionality — membership in two or more historically oppressed groups — is not having to choose which accusation of bias to make.

One day, it can be racism; the next it can be sexism. Or, different people can make different charges of an -ism on the same day. The possibilities to mix and match are endless.

Consider how Illinois Sen. Dick Durbin went to the Senate floor on Wednesday to effectively accuse Republicans of racism in the nomination fight, even though Hillary Clinton had tweeted on Monday that it is sexism and the head of Lynch’s sorority has said it is both. Synergy!

For his part, Durbin went straight to a Rosa Parks metaphor — because getting humiliated in segregation-era Montgomery, Alabama, is just like being a high-powered lawyer whose confirmation vote has been delayed in the Senate. “Loretta Lynch, the first African-American woman nominated to be attorney general,” he said, “is asked to sit in the back of the bus when it comes to the Senate calendar.”

The Senate calendar is a bus? If the NAACP ever gives an award for Best Strained Metaphor in the Cause of Calling Someone a Racist, Durbin should be a top nominee.

Clinton tweeted that the delayed vote is an offense “against women.” As if there aren’t liberal women and conservative women, or women who support Obama administration orthodoxy and those who oppose it, there’s just a bloc of undifferentiated women who care only about the gender of nominees for high office.

All of this is transparently in bad faith. Durbin may be many things, but he is not stupid enough to believe that Republicans oppose Lynch because she’s a black woman.

Did Durbin vote against the confirmation of Condoleezza Rice as secretary of state because she’s a black woman? On his own stilted terms, he wanted to relegate Rice to drinking from the segregated water fountain of failed secretary of state nominations, and used the snarling police dog of his “nay” vote to try to do it. It’s hard to believe this could still happen in 2005 America, but it almost did.

The sleight of hand of Lynch’s proponents is to pretend that her nomination is uncontroversial. Durbin says there is no “substantive reason to stop this nomination.” In a segment contrasting the swift confirmation of new Secretary of Defense Ash Carter with the treatment of Lynch, featuring side-by-side photos of the pair (Carter is a white male — get it?), MSNBC’s Rachel Maddow said the opposition to her is “inexplicable” on the merits.

This is demonstrably false. As all the Republicans opposing her nomination make plain, the issue is her belief that President Barack Obama’s executive amnesty is lawful.

This isn’t a mere matter of policy or personal preference. It implicates her view of the constitutional order that she will be sworn to uphold. Whether she thinks the executive branch can in effect write laws on its own is a threshold question. Her answer in the affirmative should be disqualifying, no matter how impressive her career has otherwise been, or how historic her confirmation would be.

On the merits, when should Republicans bring her up for a vote — now delayed because Democrats are filibustering a sex-trafficking bill? Never. When should they confirm her? Never.

The Senate shouldn’t confirm any attorney general nominee, from whatever party, of whatever race, ethnicity or gender identification, who believes the president can rewrite the nation’s laws at will.

It doesn’t matter if the nominee graduated at the top of his or her class at Harvard Law School, or barely scraped by at the University of La Verne College of Law.

If the self-styled world’s greatest deliberative body can’t enforce this basic standard, and protect its most elementary constitutional prerogative, who will? From the dawn of true representative government in Anglo-America, the legislature has used fights over executive appointments to try to protect the essentials of self-government.

Of course, if Lynch is blocked, Attorney General Eric Holder will stay in place. But there’s no helping that. The principle that would be upheld is the Senate not giving its imprimatur to an attorney general who thinks its lawmaking role is optional.

All of this is probably academic, because Republicans will eventually hold a vote on Lynch, and they almost certainly don’t have the stomach to defeat her, in part because they fear the dreaded accusation of racism-sexism — or is it sexism-racism?

The congressional fight against Obama’s executive amnesty will fizzle out, and congressional Republicans can move on to something else, sure to bring its own charges of an implicit hatred, perhaps more than one.